Director of Public Prosecutions v Croft-Smith
[2013] VCC 1447
•2 September 2013
IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for PublicationAT LA TROBE VALLEY
CRIMINAL DIVISION
Case No. CR-13-01212
DIRECTOR OF PUBLIC PROSECUTIONS v XAVIER CROFT-SMITH ---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
La Trobe Valley
DATE OF HEARING:
DATE OF SENTENCE:
2 September 2013
CASE MAY BE CITED AS:
DPP v Croft-Smith
MEDIUM NEUTRAL CITATION:
[2013] VCC 1447
REASONS FOR SENTENCE
---Subject:
Catchwords: Multiple offences – multiple victims – sex offender – intellectually disabled offender – plea of guilty – remorse
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES:
Counsel Solicitors For the DPP Mr KJ Doyle For the Accused Mr Wood HIS HONOUR:
1 Xavier Croft‑Smith, you have pleaded guilty to a total of eight charges. Charge 1 is a charge of persistent sexual abuse of a child under 16 years. This offence carries a maximum period of 25 years' imprisonment. Charges 2‑8 inclusive are charges of sexual penetration of a child under 16 years. Each of these offences has a maximum term of ten years' imprisonment as a penalty.
2 The offending was serious and persisted over a period from approximately April 2010 until July 2012. The offences are described in the prosecution opening which was Exhibit 1 on the plea and which has been agreed as a description of your offending.
3 Alternative Charge 1, the circumstances of your offending.
4 Your victim in this charge will be referred to as MA. You first met MA in April 2010. At that time she had a boyfriend. MA broke off that relationship and commenced a boyfriend/girlfriend relationship with you. MA told you that she was 14 years old, nearly 15. You said that that was okay. You were then 19 years old.
5 During the relationship you would communicate with MA via Facebook and text messages. You would tell her to start a fight with her parents and then walk out of the house. You would then travel in your car and collect her from Churchill where she was then residing with her parents. On one occasion you came and collected the complainant from a Mobil service station near to where her parents resided at Churchill. On this occasion you were driving an old car. You then drove the complainant to the Hazelwood Pondage. Whilst you were sitting in the parked car, you then began kissing her. You then penetrated her vagina with your fingers.
6 You then, on the same occasion, asked her to give you a head job. She agreed and you then put your penis in her mouth and commenced performing oral sex with her. You and the complainant then moved to the back seat of the car where you got on top of the complainant and penetrated her vagina with your penis. You and the complainant then swapped positions so the complainant was sitting on top of you. You continued to have sexual intercourse until you ejaculated inside the complainant's vagina. You were not wearing a condom at that time. This was the first time that the complainant and you had engaged in sexual activity.
7 Shortly after the relationship commenced, the complainant moved in with you and was living with you at your mother's home in Morwell. On one occasion she and yourself were in your brother's room. You penetrated the complainant's vagina with your penis and you had sexual intercourse. You again ejaculated inside her vagina.
8 The complainant, MA, and you were only in a formal relationship for approximately two months. During this time she estimates that you had sex on approximately five occasions, however she is unable to recall the particulars of each occasion as she was either drunk or “stoned” on each occasion.
9 The complainant, however, is able to recall one further occasion when she engaged in sexual activity with you whilst you were in a relationship. On this particular occasion, the complainant was driving with you in your car when you stopped at a toilet block in Rosedale. The complainant was extremely intoxicated at this time and you were forced to stop at the toilet block so she could get out of the car and vomit. You and the complainant went into the toilet block and you removed the complainant's pants and penetrated her vagina with your penis. This incident occurred towards the end of your relationship with the complainant.
10 After the complainant ended her relationship with you, she continued to have sporadic contact with you and your associates.
11 Approximately one month after the complainant went into the Department of Human Services residential unit in Sale, you re-engaged with her via Facebook. She and her friend, Ms Holmes, attended an 18 birthday party in Sale. You came to the party with one of your friends, Shiffman, and you collected the complainant and Ms Holmes from the party. The complainant had been drinking heavily at the party. Consequently she has no recollection of where you took her but she does recall driving around with you and Shiffman in Shiffman's car. Shiffman drove to an unknown location Shiffman and Holmes went for a walk leaving you and the complainant alone in the car. The complainant recalls that she performed oral sex on you on that occasion. You then performed oral sex on the complainant, inserting your tongue in her vagina. You then penetrated the complainant's vagina with his penis and they had sexual intercourse. You and the complainant then went to find Holmes and Shiffman. Once they had been found, you dropped the complainant and Holmes at the DHS unit in Sale. This was a first occasion the accused and the complainant had sex after their former relationship had ended.
12 The complainant can recall another occasion when she had sex with you on a park bench at a park in Heyfield. The complainant sat on the edge of the bench and you penetrated her vagina with your penis. This incident occurred after the former relationship between you and the complainant had ended.
13 The complainant can recall a second occasion when you drove her to Hazelwood Pondage. On the second occasion, you laid a towel on the ground underneath a yacht club premises. You then got on top of the complainant and penetrated her vagina with your penis. This incident occurred very close to the time when the complainant ceased any further contact with you.
14 The last occasion when the complainant and you had sex occurred at a park in Heyfield at approximately July 2011. You and your friend, Shiffman, picked up the complainant and her friend Holmes. At this time the complainant and Holmes were in the care of DHS. They were residing at Vista unit at Sale.
15 On this particular occasion, the complainant and Holmes snuck out of the unit and met you around the corner where they were picked up by you and Shiffman in Shiffman's red Commodore. You then drove to a bottle shop where you purchased some bourbon. They then drove around for a period of before heading to Heyfield.
16 When you arrived at the park at Heyfield, Holmes and Shiffman wanted to have sex in the car so you and the complainant went for a walk together. They walked to some park benches and you asked the complainant if she wanted to have sex. She said yes. The complainant sat on the edge of the mark bench and you then penetrated your vagina with your penis.
17 The last time the complainant had contact with you was on 19 July 2011 as she commenced a relationship with another male on that date.
18 All of those events constitute the charge of persistent sexual abuse of a child under 16.
19 There was no victim impact statement filed on behalf of MA. It is clear from the agreed summary that she was exposed to unprotected sex with you which could have resulted in pregnancy or compromised sexual health. The victim was much younger than you, and you knew it.
20 Charges 2, 3 and 4.
21 The victim in these charges was 14 years old at the time of the relevant offences. I will refer to her as AM.
22 You met AM via Facebook in approximately mid 2011. During many of the Facebook conversations between yourself and the complainant, you told her that you wanted to go out with her and that you wanted to have sex with her.
23 Approximately one month after you and the complainant first met on Facebook, they arranged to meet each other in person. From this point on, you and the complainant met up on a number of occasions and spent time together.
24 Whilst the complainant and you were communicating on Facebook. The complainant told you that she was almost 15 years old. The complainant's grandmother also told you that the complainant was 14 years of age and she told you to stay away from her.
25 On 31 August 2011, you drove to the home of your brother, Vella, who resided in Morwell. The complainant accompanied you in the car. When you got to this address, your brother was not home. Consequently you and the complainant sat and waited in the car. During the time you asked the complainant for a “quick root” whilst they waited for his brother to return home. The complainant agreed and you then pulled the complainant's pants down to her knees and penetrated her vagina with your penis and had sexual intercourse with her. That is Charge 2, taking part in an act of sexual penetration of a child under 16.
26 During this incident, you also penetrated the complainant's vagina you’re your fingers and requested that the complainant suck your penis which in fact she did and they are charges 3 and 4.
27 Later that same day, the complainant and you returned to your car which was still parked in front of Vella's house. You and the complainant sat in the car drinking alcohol. You then pulled down the complainant's jeans and penetrated her vagina with your penis. You asked the complainant if you could make a baby with her and she said no. The complainant was unsure whether you ejaculated inside her vagina on this occasion as she was affected by alcohol. On this occasion you also penetrated the complainant's vagina with your fingers and placed your penis inside her mouth and the complainant performed oral sex on you. The complainant and you then went back inside the house. This was the last occasion that you had sex with her and that is said to be representative of counts 2, 3 and 4.
28 There were three victim impact statements filed on behalf of MA. The victim, MA, sets out the psychological impact that your offending has had on her. She has had periods of hospitalisation for mental health management. Her mother and grandmother each filed a victim impact statement. In some detail there is direct contradiction between them, however, they are in agreement about the devastating impact your activities with AM have had on her and her relationships within the family. It is clear from the victim impact statements that your offending has had long‑lasting and wide ranging affect on people other than yourself.
29 I turn now to Charge 5.
30 The victim in this charge will be referred to as CW. The complainant, CW, first met you in approximately February 2012 via a mutual friend. After you had met, you commenced communicating with her on Facebook and you would arrange to meet her via messages left on Facebook.
31 On one occasion the complainant and you met up with each other and you took the complainant driving around the Morwell area in your car. The accused parked the car in some bushes across the road from a BP service station in Morwell.
32 You were sitting in the driver's seat, the complainant was in the front passenger seat. You told the complainant that you wanted to have sex with her and she said okay. You then removed the complainant's pants and penetrated her vagina with your penis. The complainant and you had sex for approximately two minutes before the complainant told you that you were hurting her. You then withdrew your penis and each pulled your pants back up. You and the complainant then drove to an abandoned house where you stayed together for the night.
33 At the time of the offending, you were aware that the complainant was 14 years old, that is Charge 5, taking part in an act of sexual penetration of a child under 16.
34 A victim impact statement was filed on behalf of CW's mother. The victim's mother recounts the psychological and potential physical risk you placed her daughter in by your activities. The mother, in her victim impact statement, states that CW cannot trust people because of your offending.
35 I turn now to Charge 6. I refer to this victim as EW.
36 The complainant, EW, first met you via her cousin. On the first occasion when the complainant met you, she told you that she was 13 years old.
37 On 9 July 2012, the complainant was socialising with her cousin and another friend who was a relative of yours and on that particular night wanted to meet up with you in Morwell.
38 Consequently, the friend spoke to you on the phone and arrangements were made for the complainant and the other girls to catch a train to Morwell where they would meet you at the Morwell train station. After the complainant and her friends met with you, they all walked to the nearby bottle shop where you purchased wine for everyone to drink. The group then walked to a party at the home of one Turner in Morwell.
39 During the evening, you and your relative repeatedly told the complainant that she have sex with you. Whilst at the party, the complainant consumed large quantities of alcohol and became intoxicated. The complainant went into a bedroom at the party and she had penile/vaginal sex with you on a mattress on the bedroom floor. You did not wear a condom and ejaculated inside the complainant's vagina. That is Charge 6, taking part in an act of sexual penetration of a child under 16.
40 There was no victim impact statement for this victim. The failure to wear a condom again raises the aggravated features of exposure to pregnancy and sexual health compromise for the victim. Further, you have engaged a female relative of yours to do your bidding in the quest for sexual gratification.
41 The final charges are charges 7 and 8. I will refer to the victim in those charges as NF.
42 The complainant, NF, met you in approximately May of 2012 via mutual friends on Facebook. You sent the complainant a friend request on Facebook which she accepted and from that point on you commenced communicating with the complainant on Facebook.
43 From the start of the friendship, the complainant told you that she was 15. You responded that was all right, 15 is just a number.
44 During the Facebook conversations you have told the complainant that you liked her a lot and that you wanted to have kids with her. You also asked the complainant if she would be your girlfriend.
45 On 20 August 2012, you contacted the complainant via Facebook and asked her to call you. She called you and you arranged to meet her later that night.
46 In the early hours of Tuesday 21 August 2012, the complainant met you at the car wash down the road from her house. This was the first time the complainant had met you in person. The complainant and yourself went for a walk. At one stage you pulled down your pants to your knees and stood in front of her. You then motioned to the complainant to suck your penis but the complainant told you that she wasn't going to do that and you stopped.
47 The complainant then went inside her house to get her phone off the charger. You then told her to grab some condoms, which she did. The complainant and you then walked to the ABC radio station on the main road in Sale. You then went into a garden bed, which was concealed from the main road. The complainant and you sat down on the garden bed and the complainant gave the condoms to you. You told the complainant to take off her pants, which she did. You and the complainant then lay down together and you penetrated the complainant's vagina with your fingers. You were talking to the complainant telling her that "You are so tight". That is Charge 7.
48 The complainant told you that she was not going to have sex with you without a condom. You asked if it was really necessary and the complainant insisted on you having a condom on. You then attempted unsuccessfully to put on a condom. The complainant then gave you another condom and told you how to put it on. You then put the condom on and then got on top of the complainant and lifted her legs over your shoulder and penetrated her vagina with your penis.
49 You then had sexual intercourse with the complainant for approximately two minutes before you ejaculated. You and the complainant then got dressed and you left the condom behind. That is Charge 8.
50 There is no victim impact statement from NF.
51 Based on the summary, NF seems to have had a little more control over your offending activity than other victims.
52 Moral culpability.
53 Ms Pillai, the barrister on your behalf, submitted that your moral culpability is limited due your intellectual disability.
54 Dr Aaron Cunningham, in his report dated 20 August 2013, has assessed your thinking and reasoning ability in the bottom 2.2 per cent of people of your age.
55 The counterbalancing factors to that proposition is that you have been interviewed by police in September 2011 in respect of AM which forms charges 2, 3 and 4 and then re‑offended against further three victims after what could be considered a warning.
56 I accept that you have an intellectual disability but you displayed guile and cunning in obtaining these sexual partners through Facebook and personal contacts, including your relatives.
57 I take into account your documented intellectual disability which is set out in exhibits A, B, C and D on the plea, in respect of the cumulation of sentence and the totality of the sentence so as not to impose a crushing sentence upon you.
58 Your personal circumstances.
59 You are now 22 years old. You have been in custody for these offences for more than one year. You have never obtained paid employment. You are the second of eight, of an eight‑child family. You have the support of your mother and stepfather.
60 When you were 14 years old, you were placed in foster care because your challenging behaviours were too much for your mother to manage.
61 You were physically abused whilst in care.
62 At this time you had the first of your Children's Court appearances. In the Children's Court you were dealt with for criminal damage, torture of an animal and theft from a motor car. At the time of your offending in respect of Charge 1 of these charges, you were in the Magistrates' Court on driving charges and assault charges involving breach of intervention orders. Your prior criminal history does not include sexual offences.
63 You have limited education. You attended Morwell Park Primary School and Baringa Special Development School. With the assistance of an integration aid, you attended Churchill Primary School. Your final schooling achievement was a TAFE certificate in small motor mechanics.
64 You have been diagnosed with Tourette syndrome and Asperger's syndrome. You have had the assistance of disability services prior to your incarceration. You are a disability support pensioner.
65 Whilst in prison, you have been working as a cleaner and kitchen hand within the prison system. You have capacity to work in a controlled environment such a prison. It was put on your behalf that you were fearful of other inmates in prison and were referred to as “a paedo” and other names similar to that. You have been assaulted in prison. All of those matters are prison management issues.
66 You present to this court as a difficult sentencing problem. You have been assessed as having an intellectual disability. You have also been assessed by Mr Cunningham as a moderate risk of sexual re‑offending.
67 I turn to sentencing considerations.
68 The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and protection of the community.
69 In sentencing you I must have regard to a range factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims.
70 I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.
71 You have pleaded guilty. You have pleaded guilty at an early stage in these proceedings. The plea was indicated at the committal proceedings on 27 June this year. Your plea of guilty has utilitarian value of allowing the orderly and effective administration of justice. There is certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community. You have, by your plea, relieved the victims from giving evidence against you. It facilitates some closure for them as victims of your offending.
72 The plea of guilty to these charges indicates and demonstrates remorse on your part. Your plea is an acknowledgement by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
73 I accept that the intellectual impairment condition could make your time in custody difficult. If you comply with your conditions in prison, hopefully that time will pass.
74 The overwhelming considerations in this case are general and specific deterrence and denouncing your conduct by the application of just punishment. In this case it has to be imprisonment. The aggravating features of the offending are that each of your victims are 13 or 14 years old. They were vulnerable people that you sought out for your own sexual gratification. You have offended against five of these people. You have continued to offend against the latter three victims on the indictment after you were interviewed by police for the victim in charges 2, 3 and 4. This indicates you fail to understand the seriousness of your actions as at September 2011.
75 Four of the charges are representative charges, that is the offending charge is representative or two or more acts of the same character. This fact has two‑fold relevance to the sentencing. First, it is to be understood as the absence of mitigating factor for being an isolated event. Secondly, it provides wider context to the extent of your offending.
76 As part of the governing principles to the considered in sentencing, I must take into account current sentencing practices. That inquiry directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and statistics at the time of the sentence. I have considered these statistics and current practices mindful that each case must be considered in lights of its own particular circumstances. Many of the cases would be distinguished from yours.
77 Under the serious offender provisions of the Sentencing Act, your conviction and sentence to a term of imprisonment, whether suspended or not on two sexual charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as a principal purpose for which a sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than a proportionate to the gravity of the sentence. This means that the sentencing task in respect of charges numbered from 3 onwards is to be undertaken on the basis that the protection of the community from you is a principal purpose for which a sentence is imposed and to achieve that purpose a sentence may be imposed longer than which is proportionate to the gravity of the offences considered in light of the objective circumstances.
78 However, because of the mitigating factors in your case, I do not propose to do that.
79 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to the charges from Charge 3 on the indictment onwards, the sentence that I impose to be served cumulatively. Allowing for the matters I have already outlined, in my view it is appropriate to only impose the degree of cumulation to which I subsequently refer reflecting, as it does, separate episodes of offending. To do otherwise may produce a sentence which is not appropriate and which is unjust and perhaps crushing.
80 The prosecution submitted that the totality of your offence calls for an immediate term of imprisonment. I have previously referred to the maximum penalties set out for these offences by Parliament. The prosecution submitted that the considerations of general and specific deterrence and denunciation ought to be accorded full weight given the circumstances of this case. I accept that a consideration of special and general deterrence combined with denunciation of these offences are very significant and I sentence you to imprisonment.
81 The prosecution submitted a range of total sentence which in my view is merciful.
82 I note here that the Crown did not call for a disproportionate sentence for cumulation contemplated either in ss.6D or 6E of the Sentencing Act.
83 If you could stand, please.
84 On Charge 1 you are convicted and sentenced to two years' imprisonment.
85 On Charge 2 you are convicted and sentenced to 12 months' imprisonment.
86 On Charge 3 you are convicted and sentenced to six months' imprisonment.
87 On Charge 4 you are convicted and sentenced to 12 months' imprisonment.
88 On Charge 5 you are convicted and sentenced to 12 months' imprisonment.
89 On Charge 6 you are convicted and sentenced to 12 months' imprisonment.
90 On Charge 7 you are convicted and sentenced to six months' imprisonment.
91 On Charge 8 you are convicted and sentenced to 12 months' imprisonment.
92 I order that three months' imprisonment of each of the sentences in charges 2, 5, 6 and 8 be served cumulatively on the sentence in Charge 1 and each other. That is a total effective sentence of three years' imprisonment.
93 I direct that you serve a minimum term of two years' imprisonment before being eligible for parole.
94 For the purpose of s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that I would have imposed is five years' imprisonment with a non‑parole period of four years.
95 I declare that the period you have already spent in custody in this matter namely I've got 375 days.
96 MR DOYLE: Your Honour, prosecution believes it's 374 because that does not include today. I think the figure that we had last time was including the day of the sentence so it should include today.
97 HIS HONOUR: I declare that you have served 374 days, not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively. I also direct pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of each charges 3‑8 inclusive as a serious sexual offender within the meaning of the act.
98 At the plea hearing the Crown sought an order for retention of a forensic sample and disposal and I signed those orders on that day and the reason for it is that the forensic sample is that the seriousness of the offending warrants such an order and it was made by consent.
99 You have been convicted of eight charges of Class 1 offences under the Sex Offenders Registration Act. You are ordered that you are now subject to mandatory reporting under that Act for life and the paperwork is prepared and will be presented to you. Mr Wood, if you wouldn't mind assisting with this part of the task. Is that okay, Mr Wood?
100 MR WOOD: Thank you, Your Honour.
101 HIS HONOUR: Anything further, Mr Prosecutor?
102 MR DOYLE: No, Your Honour.
103 HIS HONOUR: You can remove the prisoner.
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